The questions asked in the Case Stated dated 23 August 2012 be answered as follows:
1.Does Div 2 of Pt II of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act") empower an examiner appointed under s 46B(1) of the ACC Act to conduct an examination of a person charged with a Commonwealth indictable offence where that examination concerns the subject matter of the offence so charged?
Answer:The ACC Act does not authorise an examiner appointed under s 46B(1) of the ACC Act to require a person charged with a Commonwealth indictable offence to answer questions about the subject matter of the charged offence.
2.If the answer to Question 1 is "Yes", is Div 2 of Pt II of the ACC Act invalid to that extent as contrary to Ch III of the Constitution?
Answer:This question does not arise.
Representation
G D Wendler with A S G Cassels for the plaintiff (instructed John D Weller & Associates)
S P Donaghue SC with M J O'Meara for the defendants (instructed by Australian Government Solicitor)
Interveners
M G Sexton SC, Solicitor-General for the State of New South Wales with C L Lenehan for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))
W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))
M G Hinton QC, Solicitor-General for the State of South Australia with C Jacobi for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))
S G E McLeish SC, Solicitor-General for the State of Victoria with R J Orr for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)
G R Donaldson SC, Solicitor-General for the State of Western Australia with I A Repper for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
X7 v Australian Crime Commission
Statutes – Interpretation – Plaintiff charged with three indictable Commonwealth offences – Plaintiff served with summons to attend examination by examiner appointed under Australian Crime Commission Act 2002 (Cth) ("Act") – Examiner asked plaintiff questions about subject matter of charged offences – Whether Act empowered examiner to conduct examination of person charged with indictable Commonwealth offence where examination concerned offence charged.
Words and phrases – "accusatorial process of criminal justice", "examination", "prejudice the fair trial of a person who has been, or may be, charged with an offence", "principle of legality", "privilege against self‑incrimination", "right to silence", "trial according to law".
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
X7 v Australian Crime Commission [2013] HCA 29
Case
[2013] HCA 29
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a case stated by the parties, X7 (the plaintiff) and the Australian Crime Commission (the defendant). The dispute arose when the plaintiff, who had been charged with three indictable Commonwealth offences, was summoned to attend an examination by an examiner appointed under the *Australian Crime Commission Act 2002* (Cth). The examiner questioned the plaintiff about the subject matter of the very offences with which he had been charged.
The central legal issue before the Court was whether the *Australian Crime Commission Act 2002* (Cth) empowered an examiner to conduct an examination of a person who had already been charged with a Commonwealth indictable offence, where the examination concerned the subject matter of those charged offences. A secondary issue, contingent on the first, was whether the Act would be invalid to that extent if it did grant such power, by reason of Chapter III of the Constitution.
The Court reasoned that the *Australian Crime Commission Act 2002* (Cth) did not authorise an examiner to require a person already charged with a Commonwealth indictable offence to answer questions about the subject matter of that offence. The Court applied the principle of legality, noting that statutory powers that might prejudice the fair trial of a person must be clearly and unambiguously conferred. While the Act generally compels attendance and answers at examinations, it also provides a "use immunity" for answers given under compulsion, preventing their direct use in criminal proceedings, except in limited circumstances. However, the Court found that the Act's provisions, particularly in relation to examinations concerning charged offences, did not extend to compelling answers that would directly prejudice the fair trial of an accused. The Court also rejected the submission that an examiner exercising powers under s 25A(9) of the Act was exercising judicial power, distinguishing such executive inquiries from the determination of facts and application of law by a court.
Consequently, the High Court answered the first question in the Case Stated in the negative, stating that the *Australian Crime Commission Act 2002* (Cth) does not authorise an examiner to require a person charged with a Commonwealth indictable offence to answer questions about the subject matter of the charged offence. As a result, the second question regarding the constitutional validity of such a power did not arise.
Orders
Orders of the court
The questions asked in the Case Stated dated 23 August 2012 be answered as follows:
1. Does Div 2 of Pt II of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act") empower an examiner appointed under s 46B(1) of the ACC Act to conduct an examination of a person charged with a Commonwealth indictable offence where that examination concerns the subject matter of the offence so charged?
Answer: The ACC Act does not authorise an examiner appointed under s 46B(1) of the ACC Act to require a person charged with a Commonwealth indictable offence to answer questions about the subject matter of the charged offence.
2. If the answer to Question 1 is "Yes", is Div 2 of Pt II of the ACC Act invalid to that extent as contrary to Ch III of the Constitution?
Answer: This question does not arise.
Background
Background to the litigation
These reasons will demonstrate that question 1 must be answered "Yes" and that question 2 should be answered "No".The facts and the legislative scheme The ACC Act contains provisions which govern the sharing by the ACC of specific information with other government officers and agencies, both federal and State. Where, in carrying out its functions, the ACC obtains admissible evidence of an offence, whether Commonwealth, State or Territory, the CEO must assemble the evidence and give it to the relevant law enforcement or prosecutorial agency[11]. In appropriate circumstances, the CEO may also furnish information in its possession to other nominated persons, agencies or bodies[12]. At the conclusion of an examination, the examiner must give the head of the special ACC investigation a record of the examination and any documents or other things given to the examiner[13].[11]Australian Crime Commission Act 2002 (Cth), s 12(1). The CEO must also give the evidence to the Attorney-General of the Commonwealth or the State, as the case requires (s 12(1)(a)).[12]At the time of the examination, the relevant power was found in Australian Crime Commission Act 2002 (Cth), s 59. An equivalent power now exists in s 59AA, which was inserted by the Crimes Legislation Amendment (Powers and Offences) Act 2012 (Cth), but which commenced after the plaintiff was examined.[13]Australian Crime Commission Act 2002 (Cth), s 25A(15). As required by the ACC Act, the plaintiff attended before an ACC examiner[14], in response to the summons issued under s 28 in connection with the relevant special ACC investigation[15].[14]Australian Crime Commission Act 2002 (Cth), s 46B.[15]Australian Crime Commission Act 2002 (Cth), s 24A. Under the ACC Act, a person appearing at an examination is not permitted to refuse or fail to answer a question, or to produce a document or other thing, which is required by the examiner[16]. However, by reason of the combined operation of ss 30(4) and 30(5), where a person gives an answer or produces a document or thing, that answer or that document or thing is not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty[17], provided that before answering the question or producing the document or thing, the person claims[18] that the answer, document or thing might tend to incriminate him or her or make him or her liable to a penalty. A prohibition of that kind on direct use is sometimes called a "direct use immunity" or, more usually, a "use immunity".[16]Australian Crime Commission Act 2002 (Cth), s 30(2).[17]Other than in a confiscation proceeding or a proceeding for perjury: Australian Crime Commission Act 2002 (Cth), s 30(5).[18]Australian Crime Commission Act 2002 (Cth), s 30(4). Section 25A, which is critical to the resolution of this stated case, governs the conduct of an examination, and the manner in which, and the persons to whom, publication of evidence and information obtained may be made. Section 25A relevantly provides:"(3)An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination....(9)An examiner may direct that:(a)any evidence given before the examiner; or(b)the contents of any document, or a description of any thing, produced to the examiner; or(c)any information that might enable a person who has given evidence before the examiner to be identified; or(d)the fact that any person has given or may be about to give evidence at an examination;must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence."
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
CRENNAN J
HAYNE AND BELL JJ
KIEFEL J
The plaintiff's further submission, that s 25A(9) empowers an examiner to exercise judicial power, must also be rejected. Executive inquiries into facts, the subject of pending proceedings, do not involve an exercise of judicial power – those conducting such inquiries are unable to make any final determination as to the facts or to apply the law to them. That was the position of the examiner and more broadly of other officers of the ACC. A statement of principle to that effect, in Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission[128], involved rejecting earlier suggestions to the contrary in Huddart, Parker[129] and Melbourne Steamship Co Ltd v Moorehead[130]. No direction made by an examiner under s 25A(9) is determinative in respect of the fair trial of a person charged. The right to a fair trial is protected by a trial judge's discretion in relation to the admissibility of evidence and by a court's institutional powers to punish for contempt, including enjoining a threatened contempt, and to deal with an abuse of process[131].[128](1982) 152 CLR 460 at 467 per Gibbs CJ, 474 per Mason J, 475 per Murphy J.[129](1909) 8 CLR 330 at 379 per O'Connor J.[130](1912) 15 CLR 333 at 346 per Barton J; [1912] HCA 69.[131]Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at 265-266 [10]-[12] per Gleeson CJ, Gummow, Hayne and Crennan JJ; Dupas v The Queen (2010) 241 CLR 237 at 243 [14]-[15].Conclusions For the reasons given, question 1 must be answered "Yes" and question 2 should be answered "No". The issue The plaintiff was arrested and subsequently charged with three indictable Commonwealth offences: conspiracy to import a commercial quantity of a border controlled drug[132], conspiracy to traffic in a commercial quantity of a controlled drug[133], and conspiracy to deal with money that was the proceeds of crime[134]. The first two charges carried a maximum sentence of life imprisonment. [132]Contrary to Criminal Code (Cth), ss 11.5(1) and 307.1(1).[133]Contrary to Criminal Code, ss 11.5(1) and 302.2(1).[134]Contrary to Criminal Code, ss 11.5(1) and 400.3(1). While in custody, the plaintiff was served with a summons, issued under s 28(1) of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"), requiring him to appear to be examined by an examiner appointed under s 46B(1) of the ACC Act for the purposes of a "special ACC operation/investigation"[135]. The plaintiff was asked, and answered, questions which included questions about the subject matter of the offences with which he had been charged. Following an adjournment of the examination, the plaintiff refused to answer further questions about that subject matter. He was told that he would be charged with the offence[136] of failing to answer a question that he was required to answer by the examiner.[135]Defined in s 4(1) of the ACC Act as: "(a)an intelligence operation that the ACC is undertaking and that the Board has determined to be a special operation; or(b)an investigation into matters relating to federally relevant criminal activity that the ACC is conducting and that the Board has determined to be a special investigation".[136]s 30(2)(b) and (6).
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ,
CRENNAN J,
HAYNE AND BELL JJ,
KIEFEL J